FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT

03/04/99 THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT________________________

No. 98-8071________________________

D. C. Docket No. CV296-166

PAUL SCHOENFELD,

Plaintiff-Appellant,

versus

BRUCE BABBITT, In his official capacity asSecretary of Interior for the United States ofAmerica,

Defendant-Appellee.

________________________

Appeal from the United States District Courtfor the Southern District of Georgia

_________________________(March 4, 1999)

Before COX, CARNES and HULL, Circuit Judges.

COX, Circuit Judge:

1 We draw the following factual account from the record below. We note wherethere are disputes, but we resolve them by crediting the evidence submitted by Schoenfeld, thenon-moving party. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).

2

Plaintiff-Appellant Paul Schoenfeld sued Bruce Babbitt in his official capacity as Secretary

of the Department of Interior alleging that the Department had discriminated against him on the

basis of his race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, et seq. He appeals from a district court order entering summary judgment against him. We

affirm in part and reverse in part.

I. Background Facts1

In the fall of 1994, the United States Department of Interior, Fish and Wildlife Service

advertised an opening for a fish and wildlife biologist in Brunswick, Georgia. The usual hiring

procedure for a Fish and Wildlife Service GS-11 position is as follows. When a decision is made

to create a new position or hire someone into a vacant position, a notice is posted which advertises

the opening and provides a limited period of time for interested parties to submit applications. After

the period for receiving applications expires, a personnel specialist in the Personnel Office in

Atlanta, Georgia, ranks the applicants and places the names of the eligible people on a “merit

staffing certificate.” This certificate is then sent to the initial-selecting official for the position. The

certificate remains effective for 60 days. Although one 30-day extension is possible, if no candidate

is hired by the time it expires, then the process must begin again.

The initial-selecting official reviews the applications of the people listed on the merit staffing

certificate and may schedule interviews if he believes they would be helpful. The official then

selects whoever he believes is the most qualified candidate and attaches to the certificate a form

indicating the selection. In addition, the official completes an “outreach recruitment plan and

2 Questions on the form include: (1) “Has the feasibility of recruiting at multiplegrade levels been considered in order to attract a wider applicant pool. . . ?”; (2) “Have potentialadvertising sources (professional/minority/ethnic publications, Federal Job Opportunity List,Federal Career Opportunities, local newspapers) been considered for optimal recruiting effort?”;(3) Has the position vacancy been discussed with Service contacts and external counterparts (e.g.other personnel offices, equal employment offices, etc.)?”; and (4) “Have efforts been made toensure that subject matter experts or rating panel members are selected from culturally diversegroups whenever possible?” (R.2-52 at 13F.)

3 For example, the Checklist contains such possible actions as “[r]estructuredposition to lower grade level to insure more women and minorities had an opportunity to qualifyfor the position” and “[s]ent copies of vacancy announcements to women and minorityorganizations.” (R.2-52 at Ex. 13F).

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techniques” form and a “women and minorities recruitment checklist.” The outreach plan form is

several pages long and contains questions that are aimed at determining whether full consideration

has been given to minority applicants.2 The checklist is a one-page form that contains nine different

statements regarding actions that could be taken to attract minority and female candidates to the

advertised position. Each statement has a blank space next to it that can be filled with a check to

indicate that the action has been taken.3

The initial-selecting official then sends his recommendation and the requisite forms to the

assistant regional director of his program. If that person agrees with the selection, he or she

forwards it to the Office of Human Resources, where it is reviewed and screened for compliance

with Equal Employment Opportunity (EEO) guidelines. After Human Resources reviews the

recommended candidate package and indicates approval or disapproval, the package of materials

is sent to the regional director in Atlanta, Georgia, for a final decision. If the regional director

approves the selection, then the information is sent back to Personnel. Personnel then calls the

selected person and offers him or her the job.

4

In this case, a notice was posted in the fall of 1994 that advertised a GS-9/11 fish and wildlife

biologist position with the Fish and Wildlife Service in Brunswick, Georgia. The notice asked

potential candidates to fill out a standard SF-171 form and separately address five different

Knowledge, Skills, and Abilities (KSAs) ranking factors. Paul M. Schoenfeld, a white male, applied

for the position. After the application period expired, Michael White, a personnel specialist,

prepared a merit staffing certificate for the position on October 11, 1994. The certificate contained

the names of Schoenfeld, another male, and three females. Donna McElwee, a Program Analyst in

Atlanta, Georgia, then sent the certificate to Philip Laumeyer, the initial-selecting official. She also

sent him the applications, the women and minorities recruitment checklist, and the outreach plan

form. The certificate stated that it was valid “through the close of business December 12, 1994.”

(R.2-52 at Ex. 13F.)

At the time, Laumeyer was the field supervisor for the Ecological Services field office in

Brunswick, Georgia. Upon receiving the materials, Laumeyer decided that interviews would not

aid in the selection. He covered the names of the applicants and conducted a race and gender blind

rating of them based on their experience and their responses to the requested KSAs. Using this

process, he ranked Schoenfeld as the most qualified applicant. He filled out the appropriate forms

on November 23, 1994, and sent Schoenfeld’s name and the package of materials back to McElwee.

McElwee forwarded the materials to Nancy Coon, Laumeyer’s immediate supervisor and

the deputy assistant regional director for Ecological Services in Atlanta, Georgia. Coon reviewed

the recommendation and on December 5, 1994, concurred in the selection of Schoenfeld for the

position. She then sent the recommendation and materials back to McElwee. After receiving the

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materials, McElwee walked them over to the Human Resources Office where she gave them to either

Bennie Boyd or his assistant. Boyd was the assistant regional director for Human Resources for the

southeast region of the United States Fish and Wildlife Service. He reviewed the recommendation

and the attached materials.

At this point, the factual accounts offered by the parties differ. According to Laumeyer, he

was contacted by either Boyd or Coon and told that his outreach plan needed to be “fleshed out”

because, as initially completed, it only had a terse “yes” or “no” written in pencil beside each

question. (R.2-40 at 18-19, 23.) After receiving this message, Laumeyer claims that he filled out

a new outreach plan with more detailed responses and sent it through the appropriate channels back

to his supervisor and Human Resources. (Id. at 20.) Shortly thereafter, however, he received a

phone call from Boyd. Boyd told him that he needed to more fully justify his selection of

Schoenfeld. (Id. at 24.) Laumeyer could not determine what exactly Boyd meant for him to do in

order to more fully justify his selection. Although he asked Boyd what needed to be more fully

justified, he never received a clear answer. During the course of this phone conversation, Boyd

suggested Laumeyer consider a specific female candidate on the merit staffing certificate named Ms.

Chubb. (Id. at 25-26.) According to Laumeyer, it was “strongly implied” that he should hire her

for the position, and he responded that, in his opinion, Ms. Chubb was not as qualified as

Schoenfeld. (Id. at 25-26, 60.) Laumeyer had never before been asked to provide this much

justification for one of his selections. (Id. at 36-37.)

According to Boyd, he reviewed the materials and called Laumeyer to discuss his selection.

He told Laumeyer that Laumeyer’s justification for hiring Schoenfeld over the other candidates on

the certificate was “weak.” (R.2-36 at 14-15.) Boyd also told him that he had not attached an

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outreach plan to the recommendation. (Id.) As a result, Boyd told him to fill out an outreach plan

and provide further justification for his hiring decision. (Id.) Boyd maintains that he never indicated

to Laumeyer that he should consider any particular candidate for the position. (Id.) He claims that

he discussed the qualifications of Schoenfeld and that he told Laumeyer to put his justification in

writing, and he would approve it. He admits, however, that he requested additional justification in

part because Laumeyer had selected a white male and there were females on the Certificate. (Id. at

28.)

McElwee was informed by either Boyd or Coon that there was a problem with Laumeyer’s

selection in that Boyd wanted the candidates to be reviewed again because there were women and

minorities on the certificate that he wanted to make sure were properly considered. (R.2-46 at 13-

14.) She received the application package back from Boyd. Attached to it was a memorandum

addressed to Coon. McElwee returned the package to Coon. The memorandum, dated December

14, 1994, explained that:

I spoke directly to Philp [sic] Laumeyer, on failure to implementEEO initiatives, and weak justification offered on this selection. Hestated that he strongly supports affirmative employment, and of 12staff biologists at his station, 6 are female. He further stated thatwhile Ms. Chubb was basically qualified, she would requireextensive training because her experience reflect [sic] minimal skillsthat are presently in abundance at that station. He also said that theselectee provided different experience and skill required of thisposition. I suggest that these comments be included in thejustification and that the Director’s recruitment plan questionnairecompleted.

(R.2-52 at Ex.13G.)

4 Dr. Jerome Butler was the acting regional director for Ecological Services. Underthe applicable hiring scheme, he had final hiring authority for the biologist position in this case.

7

Coon forwarded this memorandum to Laumeyer with the added statement “[p]lease address

HR’s concerns. Return to Donna. Direct your comments to Dr. Butler who will decide whether to

approve your selection. Our experience has been that current composition of an individual office

does not carry the day.”4(Id.) After receiving this memorandum, Laumeyer wrote his comments in

the margins. Next to the statement suggesting that he had not fully implemented the EEO initiatives,

he wrote “[t]his is not true. They were implemented and justified.”(Id.) Next to the comment that

Ms. Chubb was “basically” qualified he wrote “marginally.” Finally, next to the reference to him

being told to complete the Director’s recruitment plan questionnaire, he wrote “[t]his was completed

(twice!).”(Id.)

On December 20, 1994, Laumeyer sent a memorandum entitled “Further Justification for

Selecting Mr. Schoenfeld” to McElwee so that it could be forwarded to the regional director. (R.2-

52 at Ex. 13H). His additional justification explained how he had selected Schoenfeld using a blind

rating system and that Schoenfeld had demonstrated superior performance in his responses to each

of the KSAs. He noted that Ms. Chubb had been rated third on his initial selection sheet, and that

she had not responded to the KSAs. He also stated that Schoenfeld’s SF-171 indicated a “self-

motivated individual” who would bring land management knowledge to the office which would not

be a duplication of existing office abilities.

In a note to McElwee on the routing form, he wrote “Donna, I don’t know what else to write.

Schoenfeld is head and shoulders better than the other applicants. If I can’t get him, maybe we

should extinguish the position. As you can see by Boyd’s memo – he is absolutely no help.”(Id.)

8

Laumeyer does not know what happened to his recommendation and his package of materials after

it was sent back to Atlanta on December 20, 1994. McElwee claims that she took the material from

Laumeyer and brought it to Coon. (R.2-46 at 19.)

Tom Olds was the assistant regional director of Ecological Resources through February

1995. In that position, he was Nancy Coon’s supervisor, although Coon did have acting authority

in certain areas. On December 30, 1994, Olds placed his surname on the same sheet that Coon had

signed on December 5 to indicate her approval of Laumeyer’s recommendation. Since it had Coon’s

name on it already and she was supervisor of the Brunswick station, his approval of the selection

was not necessary. He placed his surname on it, however, in order to process the paperwork. (R.2-

44 at 23-24.) Olds states that after he placed his surname on the package, it should have been picked

up and sent back to Human Resources. (Id.) McElwee testified that she typically would have taken

the packet from Olds and delivered it to Human Resources, but in this case she could not specifically

recall delivering these documents. (R.2-46 at 21.)

Coon retired in early January 1995 around the same time that Olds found the packet on his

desk, and Gerald Purdue became the acting Deputy Assistant Regional Director of Ecological

Services on January 8, 1995. The parties dispute the role of Pardue in this case. According to

Schoenfeld, Pardue had no role in the selection process because after Coon signed the certificate,

nothing else had to be done with the application in the Ecological Services offices. (R.2-44 at 25.)

At that point, the packet should have been routed back to Human Resources and Boyd. According

to Schoenfeld, Pardue did not have time to take any action on the certificate until after it expired

because he did not start work until three days before the last possible date that the certificate could

have expired.

9

In contrast, Boyd claims that he never saw the packet of materials again and that it did not

come back through his office. (R.2-36 at 23.) Pardue claims that the certificate and packet of

materials was on his desk when he started working. (R.2-35 at 11-12.) Pardue noticed that he had

a short period of time in which to act on it and he made some calls to Personnel to inquire about it.

(R.2-35 at 17-19.) Through either these calls or talking to Schoenfeld himself, he learned that

Laumeyer had told Schoenfeld that he had been selected for the position even though no final

decision had been made. (R.2-35 at 18-19.) Since this was a breach of protocol, he claims that he

let the certificate expire without anyone being selected. (R.2-35 at 35.)

In late November or early December 1994, Schoenfeld was notified that he had been selected

for the position by some employees in the Fish and Wildlife Service who congratulated him on his

selection. (R.2-55 at 53-58.) When he did not hear anything for a few weeks, he called Laumeyer.

Laumeyer told him that he had been selected, but the application had been held up for equal

employment opportunity reasons because the Human Resources Office wanted increased

justification for the selection and were pressuring him to hire a specific female for the position.

(R.2-55 at 58, 63-64.) Schoenfeld called Laumeyer again in early January 1995, and he was told

that his selection was not looking good. (R.2-55 at 65-66.)

On January 12, 1995, Schoenfeld filed an administrative grievance with the EEO contending

that the Fish & Wildlife Service had discriminated against him on the basis of his sex and race when

it had refused to hire him for the biologist position. Schoenfeld received a letter on January 18,

1995, from the Department of the Interior’s Personnel Office informing him that he had not been

hired for the position and that the certificate had expired without anyone being hired.

II. Procedural Background

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Schoenfeld filed this action in the United States District Court for the Southern District of

Georgia. The three-count complaint named as defendants Bruce Babbitt, in his official capacity as

Secretary of the United States Department of Interior and Bennie Boyd. It alleged that the

Department had discriminated against Schoenfeld on the basis of his sex and race in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and that Boyd had

personally discriminated against him in violation of the Equal Protection clause of the Fifth

Amendment of the United States Constitution. The complaint sought compensatory damages, back

pay, placement in a comparable position, and attorney’s fees.

The equal protection claims against Boyd were voluntarily dismissed without prejudice.

Babbitt then moved for summary judgment on all the claims against him. The district court granted

the motion. The district court first analyzed Laumeyer’s statement that Boyd had refused to concur

in the selection of Schoenfeld because he was a white male and concluded that the statement was

not direct evidence of discrimination. The court then found that Schoenfeld had failed to make out

a prima facie case of sex or race discrimination using circumstantial evidence because: (1) he had

not demonstrated that he had been treated differently than any other applicant, since no one had been

hired for the position; and (2) there was insufficient other evidence of discrimination in the record

to create a question of fact on the issue. In this appeal, Schoenfeld challenges the district court’s

conclusions that there was neither direct nor circumstantial evidence of discrimination.

III. Standard of Review

We review de novo a district court order granting a motion for summary judgment. Raney

v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997). The entry of summary

judgment is only appropriate when “there is no genuine issue as to any material fact and . . . the

5 There are other exceptions to the final judgment rule. They are not relevant here,however, and we do not discuss them.

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moving party is entitled to a judgment as a matter of law.” See Fed. R. Civ. P. 56(c); Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). In examining the record, we view the

evidence in the light most favorable to the non-moving party. See Arrington v. Cobb County, 139

F.3d 865, 871 (11th Cir. 1998).

IV. Discussion

1. Jurisdiction

As a preliminary matter, we conduct a sua sponte inquiry into our jurisdiction to hear this

appeal. Absent the application of some exception, this court only has appellate jurisdiction to hear

appeals from “final decisions” rendered by district courts. 28 U.S.C. § 1291. When there is more

than one claim for relief or there are multiple parties in an action, a district court order is a “final

decision” if it either: (1) adjudicates all the claims against all the parties in the action; or (2)

explicitly states that “there is no just reason for delay” and expressly directs the entry of final

judgment as to one or more of the parties but not all of them. Fed. R. Civ. P. 54(b); Jetco Elecs.

Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973). In addition, there is an exception to

the finality rule pursuant to which a party may appeal from an otherwise nonfinal district court order

in a multiparty case if a series of orders, taken together, effectively terminate the litigation between

all the parties. See Jetco, 473 F.2d at 1231.5

As originally filed, this case was a multiparty action brought against both Babbitt and Boyd.

In response to a motion to dismiss filed by Boyd, Schoenfeld filed a stipulation under Fed. R. Civ.

P. 41 that dismissed without prejudice the claim against Boyd. The district court then issued the

12

order granting summary judgment and directing that final judgment be entered for Babbitt and against

Schoenfeld. The issue before us is whether the rule articulated in Ryan v. Occidental Petroleum

Corporation, 577 F.2d 298 (5th Cir. 1978), and its progeny dictates that we dismiss this case for lack

of jurisdiction due to Schoenfeld’s dismissal without prejudice of the claim against Boyd.

In Ryan, the former Fifth Circuit held that it lacked jurisdiction to hear an appeal from a

district court order dismissing some of the plaintiff’s claims with prejudice since the plaintiff had also

entered a voluntary dismissal without prejudice of the remaining claims. Ryan, 577 F.2d at 302. The

court in Ryan reasoned that the initial district court order was not a final decision because at the time

it was issued, there were still claims remaining, and it did not contain the district court certification

required by Rule 54(b). Id. at 301-303 . The court held that the “successive order” exception

articulated in Jetco did not apply because the subsequent voluntary dismissal did not terminate the

litigation between the parties so as to convert the earlier order into an appealable final decision. Id.

at 302. The court stated that the litigation had not been effectively terminated at the district court

level because the dismissal was without prejudice to the plaintiff refiling the claims at a later time.

Id.

This circuit has since invoked Ryan in similar situations to conclude that it lacked jurisdiction

to hear appeals from nonfinal orders. See Construction Aggregates, Ltd. v. Forest Commodities

Corp., 147 F.3d 1334 (11th Cir. 1998) (per curiam) (no jurisdiction to review an order granting

summary judgment against a party in light of fact that party later voluntarily dismissed its

counterclaim without prejudice); Mesa v. United States, 61 F.3d 20 (11th Cir. 1995) (no jurisdiction

to review a district court’s order dismissing some claims where plaintiff later voluntary dismissed

remaining claims without prejudice). The common element in Ryan, Construction Aggregates, and

13

Mesa was that the plaintiff in each case filed a voluntary dismissal without prejudice after the district

court entered an adverse, non-final order that did not dispose of the entire case or contain the district

court’s requisite Rule 54(b) certification. One possible purpose of the plaintiff’s voluntary dismissal

was to end all proceedings in the district court so that the plaintiff could pursue an immediate appeal

of the earlier order. See Ryan, 577 F.2d at 300. As a result, the issue presented was whether a

stipulation of voluntary dismissal without prejudice of the remaining claims in a case could confer

finality on an earlier nonfinal district court order that lacked Rule 54(b) certification. See Mesa, 61

F.3d at 22.

In this case, Schoenfeld dismissed the claim against Boyd without prejudice before the district

court entered the order granting summary judgment and entered a final judgment. Consequently, the

district court order granting summary judgment adjudicated all the claims against all the remaining

parties in the action at the time it was entered. There was simply no reason for the district court to

even consider including the alternative certification required by Rule 54(b). This situation is,

therefore, distinct from the one covered by Ryan, Construction Aggregates, and Mesa.

Although the language in Ryan and its progeny could be read to have a broad application, we

conclude that it was not meant to apply to the present case. Instead, we read Ryan and its progeny

to apply only when a plaintiff voluntarily dismisses its remaining claims without prejudice after a

nonfinal adverse district court order has been entered. In such a situation, the district court would

have had the discretion to certify under Rule 54(b) its earlier adverse order for immediate appeal.

See Ryan, 577 F.2d at 302-303. If the district court chooses not to do so, then there is a presumption

6 By restricting the application of Ryan and its progeny, we remove the dangerdiscussed by the concurrence in State Treasurer of the State of Michigan v. Barry, — F.3d —, —(11th Cir. 1999), that under Ryan parties could “strategically” voluntarily dismiss a trivial claimearly in a case in order to prevent appellate review of the district court’s later disposition of theprimary claims.

14

that the plaintiff’s voluntary dismissal was an improper attempt to manufacture jurisdiction for an

immediate appeal. See id.6

Since there was a “final decision” in this case, we conclude that we have jurisdiction under

28 U.S.C. § 1291 to hear this appeal.

2. Summary Judgment

Title VII prohibits an employer from “discriminat[ing] against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff in a Title VII action

may attempt to show this discrimination by offering either direct or circumstantial evidence. Hill

v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988), modified, 848

F.2d 1582 (11th Cir. 1988). Schoenfeld seeks to show discrimination using both methods.

A. Direct Evidence

Direct evidence of discrimination is evidence, that, “if believed, proves [the] existence of [a]

fact in issue without inference or presumption.” Burrell v. Board of Trustees of Ga. Military College,

125 F.3d 1390, 1393 (11th Cir. 1997) (citations omitted). As our precedent illustrates, direct

evidence is composed of “only the most blatant remarks, whose intent could be nothing other than

to discriminate” on the basis of some impermissible factor. Carter v. City of Miami, 870 F.2d 578,

582 (11th Cir. 1989); see, e.g., Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir. 1990) (in Title VII

race discrimination case brought by a white woman who was terminated from her program director

15

position, statement by decision-maker that the program needed a black director was direct evidence

of discrimination). If an alleged statement at best merely suggests a discriminatory motive, then it

is by definition only circumstantial evidence. Burrell, 125 F.3d at 1393.

In this case, the district court explicitly considered only one statement in its discussion of

whether there was direct evidence of discrimination. Schoenfeld argues that the court erred in not

finding that statement and several other statements to be direct evidence. The statement considered

by the district court was Laumeyer’s assertion that he believed Schoenfeld had not been hired due

to his race and gender. There were three other statements that Schoenfeld contends he presented to

the district court that the district court did not explicitly discuss. First, McElwee, the program analyst

who brought the recommendation file to Boyd, testified that she was told by either Boyd or Coon that

Boyd wanted the women or minorities on the certificate to be reviewed again. (R.2-46 at 13-14.)

Second, Judith Turk, an EEO counselor who worked for Human Resources, testified that Boyd told

her that he had informed Laumeyer that he had to provide a legitimate justification for why he was

selecting Schoenfeld for the position when there were female candidates on the certificate. (R.2-52

at 2; R.2-39 at 71.) Finally, Boyd was asked during his deposition “[t]he reason that you requested

additional justification on this particular staffing certificate, was it because Mr. Laumeyer had

selected a white male in this position?” and he responded “[i]t was more than that” and stated that

the justification was also poor, the outreach statement was missing, and there were three women on

the certificate. (R.2-36 at 28.)

Although these statements suggest discrimination, they are not the type of “blatant remarks”

from which discrimination can be found without the aid of an inference. If the statements are

accepted as true, a rational jury could infer from them that Boyd was discriminating against

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Schoenfeld because he was a white male. At the same time, however, a rational jury could also infer

that Boyd was merely fulfilling his job responsibility to ensure that EEO Guidelines were properly

followed and that all minority applicants were fairly considered. Given the differing inferences that

may be drawn from these statements, we conclude that the district court did not err in ruling that

Schoenfeld had not presented any direct evidence of discrimination.

B. Circumstantial Evidence

When a plaintiff attempts to prove intentional discrimination in violation of Title VII using

circumstantial evidence, we apply the now familiar shifting burden framework established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Under this

framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Eskra v. Provident Life and Acc. Ins. Co., 125

F.3d 1406, 1411 (11th Cir. 1997). If he meets that burden, then an inference arises that the

challenged action was motivated by a discriminatory intent. Burdine, 450 U.S. at 254, 101 S. Ct. at

1094; Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). The burden then shifts to the

employer to “articulate” a legitimate, non-discriminatory reason for its action. Burdine, 450 U.S. at

254-55, 101 S. Ct. at 1094-95. If the employer successfully articulates such a reason, then the burden

shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful

discrimination. Id. at 255-56, 101 S. Ct. at 1095-96.

1. Prima Facie Case

In a traditional failure-to-hire case, the plaintiff establishes a prima facie case by showing

that: (1) he was a member of a protected class; (2) he applied and was qualified for a position for

17

which the defendant was accepting applications; (3) despite his qualifications, he was not hired; and

(4) after his rejection the position remained open or was filled by a person outside his protected class.

Welborn v. Reynolds Metal Co., 810 F.2d 1026, 1028 (11th Cir. 1987) (per curiam).

Schoenfeld’s complaint alleges that he was discriminated against both on the basis of his race

and on the basis of his gender. The Government concedes that Schoenfeld made the first three

requisite showings in his discrimination claims in that he was a white male who applied for the

biologist position and was qualified for it but was not hired. The key inquiry, therefore, is whether

he has met the fourth requirement. The district court concluded that Schoenfeld had not because he

had not shown that anyone had been hired for the biologist position, he had not shown that he had

been treated differently than any similarly situated female or minority applicant, and he had not

offered any other evidence of discrimination.

The district court correctly disposed of the race discrimination claim because it is clear that

Schoenfeld has failed to satisfy the fourth prong of the requisite prima facie showing. Although he

makes conclusory references to Boyd suggesting that Laumeyer hire an Oriental woman, he points

to no admissible evidence indicating the race of the woman. Instead, there is only speculation that

the female might have been Oriental. (R.2-40 at 36; R.2-55 at 83-84, 106; R.2-52 at Ex. 13I.) As

a result, there is no showing that Schoenfeld was treated differently than a minority applicant and he

has failed to raise an inference that race was a factor in his non-selection.

The gender discrimination claim, however, presents a closer question. We have repeatedly

emphasized that the requisite showings that make up a prima facie case are not meant to be rigid or

inflexible. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991); Jones, 874 F.2d

at 1538; Grigsby v. Reynolds Metal Co., 821 F.2d 590, 594 (11th Cir. 1987). In cases where the

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evidence does not fit neatly into the classic prima facie case formula, for example, we have stated that

“[a] prima facie case of disparate treatment can be established by any ‘proof of actions taken by the

employer from which we infer discriminatory animus because experience has proved that in the

absence of any other explanation it is more likely than not that those actions were bottomed on

impermissible considerations.’” Hill, 841 F.2d at 1540 (quoting Furnco Constr. Corp. v. Waters, 438

U.S. 567, 576 98 S. Ct. 2943 (1978)).

We believe that Schoenfeld’s gender discrimination claim presents such a situation.

Schoenfeld has presented evidence that Boyd failed to concur in his selection because he was a male

and then suggested that a specific female applicant be considered for the position instead of him. In

his deposition, for example, Boyd responded that “[i]t was more than that” when asked if he had

requested additional justification because a white male had been selected for the position. (R.2-36

at 28.) This statement can be construed as a tacit admission that gender was a factor in Schoenfeld’s

rejection. Turk, a Human Resources employee, also indicated that Boyd had requested that Laumeyer

provide additional justification because a male had been selected for the position. (R.2-52 at 2; R.2-

39 at 71.) Furthermore, there is the testimony of McElwee that historically Boyd had only requested

additional justification from the initial selecting officers when white males were selected for

positions. (R.2-46 at 24-25.) Finally, there is Laumeyer’s testimony that Boyd asked him to further

consider a specific female applicant instead of Schoenfeld. (R.2-40 at 25-26.) Laumeyer stated that

he felt pressured by Boyd to hire the female applicant, and he believed that if he had selected her then

the recommendation would have been approved without delay. (R.2-40 at 46-48, 60.)

Although Boyd was not the final decision maker, he was an integral part of the multi-level

hiring process that had been established by the Department of Interior’s Fish and Wildlife Service.

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It was necessary for him to indicate his approval or disapproval of a candidate and forward the

application packet before it would reach the final decision maker. As a result, the evidence regarding

Boyd’s conduct suggests that a discriminatory animus was at work that tainted the entire hiring

process.

This evidence, when considered together, creates a situation that is analogous to an employer

deciding not to hire a particular candidate and then continuing to consider other applicants for the

position who are members of a different race or gender. See, e.g., Furnco Constr. Corp., 438 U.S.

at 576, 98 S.Ct. at 2949; Hill v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1540 (11th

Cir. 1988); cf. Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1359 (9th Cir. 1985)(the fourth element of a

prima facie failure to promote case “is met whenever the employer continues to consider other

applicants whose qualifications are comparable to the plaintiff’s after refusing to consider or rejecting

the plaintiff.”). We therefore conclude that Schoenfeld has made out a prima facie case of gender

discrimination.

The district court’s grant of summary judgment was based solely on Schoenfeld’s inability

to establish a prima facie case. The district court did not address whether defendant articulated a

legitimate, non-discriminatory reason for its actions and whether plaintiff had shown pretext. Since

we have all the evidence necessary to address these stages of the McDonnell Douglas framework, we

will do so now.

2. Legitimate, Non-discriminatory Reason

Once a plaintiff meets his burden of establishing a prima facie case, an inference of

discrimination arises and the burden of production shifts to the defendant to articulate a legitimate,

non-discriminatory reason for its hiring decision. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. In

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this case, Defendant claims that Boyd deferred concurring in the selection of Schoenfeld and asked

for additional justification from Laumeyer because the packet of materials forwarded by Laumeyer

along with the recommendation was missing the outreach statement and contained a deficient

justification statement. Defendant contends that Laumeyer’s additional justification memorandum

did not return to Boyd’s office before the certificate expired. Instead, it claims that Pardue made the

decision to let the hiring certificate expire in early January 1995. According to Defendant, Pardue

took this course of action because he had learned that Laumeyer had informed Schoenfeld of his

“selection” for the position, in breach of the office’s internal policies.

This is a legitimate, non-discriminatory reason for Defendant’s failure to hire Schoenfeld.

Missing necessary paperwork, bureaucratic mistakes, and violations of hiring procedures are all

sufficient reasons to justify the non-hiring of an applicant. As we have previously explained, it is not

the role of federal courts to second-guess the hiring decisions of business entities. See Nix v. WLCY

Radio/Rahall Comm., 738 F.2d 1181, 1187 (11th Cir. 1984). The reason offered by an employer for

an action “‘does not have to be a reason that the judge or jurors would act on or approve.’” Id.

(quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)). Instead, all that matters is

that the employer advance an explanation for its action that is not discriminatory in nature. Id.

3. Pretext

Once a defendant articulates a legitimate, non-discriminatory reason for its action, the initial

inference of discrimination “drops” from the case. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.502,

510-11, 113 S. Ct. 2742, 2749 (1993). The burden then shifts back to the plaintiff to show that the

proffered reason was pretext for intentional discrimination and that the defendant intentionally

discriminated against him. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. A plaintiff may show

7 In his Statement of Material Facts, Disputed and Undisputed, That PrecludeSummary Judgment attached to his response to Defendant’s motion for summary judgment,Schoenfeld indicates that he had been given inconsistent dates for when the certificate expired. (R.1-31 at 19 ¶ 85.) He contends that he was told it had expired on December 2nd, December12th, and then Pardue told him it had expired on January 11, 1995. (Id.)

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pretext and survive summary judgment by “presenting evidence sufficient to demonstrate a genuine

issue of material fact as to the truth or falsity of the employer’s legitimate, nondiscriminatory

reasons.” Evans v. McClain of Georgia, Inc., 131 F.3d 957, 965 (11th Cir. 1997) (citations omitted);

see Hicks, 509 U.S. at 511; 113 S. Ct. 2742, 2749 (1993) (“The fact finder’s disbelief of the reasons

put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity)

may, together with the elements of a prima facie case, suffice to show intentional discrimination.”).

In an attempt to show pretext, Schoenfeld relies on the same evidence that composed his

prima facie case and some additional evidence. First, he contends that Laumeyer filled out and

supplied all the necessary paperwork to Boyd and that Boyd’s explanation for his actions was false.

In support of his argument, he points to Laumeyer’s deposition testimony. Second, he argues that

Pardue’s explanation is not worthy of credence because the certificate must have expired before he

would have had a chance to act on it. In support of this proposition, he points to circumstantial

evidence indicating that Pardue started work on January 8, 1995, and could not have possibly made

a decision on the application package by Defendant’s alleged expiration date of January 11, 1995.

In addition, in his brief in opposition to Babbitt’s motion for summary judgment, he refers to

inconsistencies in the given expiration date of the certificate as undermining the truthfulness of the

proffered explanation.7 (R.1-32).

Considering Schoenfeld’s second argument first, we believe that there is evidence in the

record from which a rational fact finder could conclude that Pardue’s proffered reason for letting the

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merit staffing certificate expire was false. Although this would seem to be a readily ascertainable

fact, the record contains conflicting evidence as to when the certificate actually expired. The parties

agree that a certificate was valid for only 60 days after its issuance and that one 30 day extension

could be approved. (R.2-37 at 17; R.2-45 at 46.) The certificate in this case was issued on October

11, 1994. It contained a statement that it would expire sixty days later, at the close of business on

December 12, 1994. (R.2-52 at Ex. 13F.) An instruction memorandum signed by Scott White also

stated that “[t]his Certificate must be returned to the Division of Personnel by close of business,

December 12, 1994.” (R.2-52 at Ex. 13E (emphasis in original).) The memorandum further provided

that “[i]f you cannot make a selection within 60 days from the issue date of the certificate, submit a

request for an extension in writing to the Division of Personnel.” (Id.)

According to Pardue, the certificate expired on January 11, 1995. In order for this date to be

accurate, a 30 day extension from the December 12, 1994 date on the certificate must have been

requested and approved. Scott White testifies in his deposition that he cannot recall whether an

extension was given in this case, but if one was not given, then the certificate would have expired in

60 days, and it would not have been possible to grant an extension retroactively. (R.2-45 at 46-47.)

Sandra Anderson, an employee with Personnel who was White’s assistant, testified that no extension

had been granted in this case. (R.2-37 at 18.) She was the individual who typed the certificate in the

first instance and the one who typed the forms notifying the applicants that the certificate had expired.

(R.2-37 at 9-11.) If her testimony is credited, as it must be on summary judgment, then the certificate

would have expired at the close of business on December 12, 1994.

If a jury were to accept this expiration date, then it would make Pardue’s entire explanation

as to why he let the certificate expire irrelevant. Instead, the key issue in this case would be whether

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Boyd had a legitimate reason for not concurring in the selection and forwarding it up the appropriate

channels once he received the recommendation prior to its expiration in early December.

On this point as well, Schoenfeld has met his burden of producing sufficient evidence to

create a material issue of fact on Boyd’s actual motivation and handling of the certificate. Schoenfeld

has offered the testimony of Laumeyer that he properly filled out the paperwork and included all the

necessary forms when he initially sent the package out. (R.2-40 at 18-24.) He has also offered

Laumeyer’s testimony that Human Resources, nevertheless, held up the recommendation twice. First,

it came back for a “fleshing out” of the outreach plan. (R.2-40 at 18-20.) After that was done, it

came back for an unclear “further justification” and a request for consideration of a specific female

candidate. (R.2-40 at 24-27.) This evidence sufficiently casts Boyd’s explanation for his actions into

doubt.

In addition to casting doubt on Defendant’s proffered explanation for its action, Schoenfeld

has offered additional circumstantial evidence of discrimination. As discussed in the analysis of

Schoenfeld’s prima facie case, the record contains statements by Boyd and others that one of the

reasons the certificate was sent back for further justification was because Laumeyer had selected a

male. Although not direct evidence, these statements still suggest a possible improper motive. There

is also testimony in the record by McElwee that the only time that she knew of further justification

being requested by Human Resources was when a male was selected by the initial-selecting officer.

(R.2-46 at 24-25.) Finally, although clearly not direct evidence, there is Laumeyer’s testimony that

he felt pressured to hire a female applicant and he believed that if he had selected the female

applicant, the recommendation would have been approved without any problems. (R.2-40 at 46-48,

60).

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This evidence, combined with the other evidence advanced to raise a prima facie case of

discrimination, is sufficient to create a material question of fact regarding whether defendant

intentionally discriminated against Schoenfeld on the basis of his gender. As a result, we conclude

that the district court erred in entering summary judgment for Defendant on Schoenfeld’s gender

discrimination claim.

V. Conclusion

For the foregoing reasons, we AFFIRM the district court order granting defendant’s motion

for summary judgment on plaintiff’s race discrimination claim but REVERSE that portion of the

order granting summary judgment on the gender discrimination claim.

AFFIRMED IN PART AND REVERSED IN PART.